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Gidron v. New York City Board of Education

December 26, 2007

LEROY GIDRON PLAINTIFF,
v.
NEW YORK CITY BOARD OF EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Trager, J.

MEMORANDUM AND ORDER

Pro se plaintiff Leroy Gidron ("Gidron" or "plaintiff") brought this discrimination and retaliation action against his employer, the Board of Education of the City of New York ("Board" or "defendant"), for whom he worked as a school aide in Public School 156 ("P.S. 156") from 1991 until 2004. Gidron makes three legal claims in this case. He alleges that he was subjected to (1) sex-based discrimination in the form of failing to be hired for the position of permanent paraprofessional, (2) a hostile work environment, and (3) retaliation for engaging in a protected activity. All of plaintiff's claims arise under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq.

The Board now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(c) on all of plaintiff's claims. For the reasons stated below, defendant's motion for summary judgment is granted.

Factual and Procedural Background

Consideration of this motion for summary judgment requires construing the facts in the light most favorable to plaintiff, the non-moving party.*fn1 Coosemans Specialties, Inc. v. Gargiulo, 485 F.3d 701, 705 (2d Cir. 2007). Therefore, the following details are either undisputed or presented in the light most favorable to Gidron. The facts are extracted from four sources:

(1) approximately 200 pages of exhibits attached to plaintiff's complaint, the majority of which are hand-written letters penned by plaintiff between 2001 and 2007; (2) miscellaneous employment-related documents he has collected and supplied; (3) plaintiff's deposition, taken October 17, 2006; and (4) defendant's filings, including declarations of Board of Education employees.

(1). Basis for Plaintiff's Failure-to-Hire Claim

Gidron, who is currently 43 years old, began working for the Board of Education as a school aide at P.S. 156 in Queens in October 1991. Deposition of Leroy Gidron, Oct. 17, 2006 ("Gidron Dep.") (attached as Ex. C to the Declaration of Zoë Davidson ("Davidson Decl.")), at 23. School aides perform non-pedagogical duties, including supervising students at lunch, recess and dismissal. Declaration of Noreen Little ("Little Decl.") (attached as Ex. I to Davidson Decl.) at ¶ 5. Gidron worked approximately four to five hours each weekday as a school aide. Gidron Dep. at 23, 29.

Between 1983 and 1999, Gidron was also employed by Sears. Id. at 11. From 1991 to 1999, Gidron scheduled his shifts at Sears around his daily schedule at P.S. 156. Id. at 29. Gidron resigned from Sears in 1999. Id. at 12.

Gidron currently holds several certificates of achievement from Sears, as well as degree diplomas qualifying him for work as a teacher's aide, paralegal assistant and private investigator. Id. at 55. Gidron received a high-school diploma in 1981. See Complaint, dated May 11, 2005 ("Compl."), Ex. 2 at 83. Gidron does not hold any other degrees or certificates. Gidron Dep. at 55.

While working as a school aide, Gidron aspired to become a permanent paraprofessional. Compl. Ex. 1 at 50-51. Permanent paraprofessionals are also employed within New York City public schools by the Board. Declaration of Linda Zimmerman ("Zimmerman Decl.") (attached as Ex. K to Davidson Decl.) at ¶ 9. The record does not include a description of the exact responsibilities that a permanent paraprofessional performs.

In pursuit of a permanent paraprofessional position, Gidron communicated with Board employees at both P.S. 156 and the Board's Department of Human Resources. Gidron Dep. at 73. However, Noreen Little ("Little"), the principal of P.S. 156 since August 2000 and Gidron's boss, repeatedly informed Gidron that he did not meet the qualifications of a permanent paraprofessional because permanent paraprofessionals were only hired from a list of eligible substitute paraprofessionals, and Gidron was not a substitute paraprofessional. Little Decl. at ¶ 9.*fn2 Many others with whom Gidron interacted also conveyed this information.*fn3

Under standard Board procedures, permanent paraprofessional positions are filled by substitute paraprofessionals as follows:

(1) the principal of the school with a vacancy notifies the regional office; (2) the regional office contacts the Director of the Substitute Paraprofessional Registry ("Registry"); (3) the Registry assigns a substitute paraprofessional to work within the school for an observation period of approximately 5 to 10 days; and (4) upon the principal's approval, the substitute paraprofessional is processed for the permanent position. Zimmerman Decl. at ¶ 9.*fn4

The Registry contains the names of persons qualified to serve as substitute paraprofessionals. Id. at ¶ 1. A qualified substitute paraprofessional is required to have a high-school diploma, to have passed a tuberculosis examination, and to have submitted a completed application for the position. Id. at ¶ 3.

As of 2004, applicants must have also passed either the New York State Assessment of Teaching Assistant Skills test ("NYSATAS") or the Liberal Arts and Sciences Test ("LAST"), and have completed two workshops. Id. at ¶ 10.

Importantly, substitute paraprofessionals fill day-to-day absences on a short-term basis and must therefore be available on short-term notice. Id. at ¶ 4. Consequently, they may not hold another job while listed on the Registry. Id.

Gidron understood these hiring procedures, but he did not want to give up his existing job, and so he continued to work as a school aide until his September 15, 2004 resignation took effect on October 1, 2004.*fn5 All the while, he continuously asked to be hired for the permanent paraprofessional position. See, e.g., Compl. Ex. 1 at 10, 11, 15, 55.

Consequently, although Gidron waged a "12-year fight" for the job, the Board never hired him as a permanent paraprofessional. Compl. Ex. 1 at 50. Gidron also never worked as a substitute paraprofessional. Gidron Dep. at 47. Gidron claimed that from 1992 through 2003, his name appeared on the Registry as an available substitute paraprofessional. Id. But according to Charles Peeples ("Peeples"), the Board's Human Resources Director for the Borough of Queens, there is no record that Gidron ever submitted a completed application to the Registry or was ever listed as an available substitute paraprofessional. Declaration of Charles Peeples ("Peeples Decl.") (attached as Ex. J to Davidson Decl.) at ¶¶ 8-9.*fn6

Gidron alleges that during the time period in question, the Board promoted females with fewer qualifications and less experience than himself to fill vacant permanent paraprofessional positions.*fn7 Gidron named three such females who he believed were promoted from school aides to permanent paraprofessionals: Maddie Dagracia, Paulette Carter and Mary Constant. Gidron Dep. at 44. Gidron did not, however, know whether any of the females had in fact satisfied the prerequisites for the position, whether any had first served as a substitute paraprofessional, or when any of them had actually become permanent paraprofessionals. Id. at 45. Gidron also recounted the transfer of one paraprofessional, Terry Price, from another school into P.S. 156 to fill a vacancy there. Compl. Ex. 1 at 57; Gidron Dep. at 92.

According to Principal Little, Ms. Price met all of the qualifications for the paraprofessional position, including having served as a substitute. Little Decl. at ¶ 16. Ms. Dagracia and Ms. Carter never worked at P.S. 156 during Little's tenure. Id. at ¶¶ 19-20. Little also mentions another female paraprofessional at Gidron's school, Ms. Hughes, who "[u]nlike plaintiff . . . met all of the qualifications for the position." Id. at ¶ 23.

Gidron also acknowledged that the Board hired males as permanent paraprofessionals. Gidron Dep. at 97. Specifically, Gidron recalled that two males, Cletus Stewart*fn8 and Kevin Gillette, both worked as permanent paraprofessionals in P.S. 156 during the time period in question. Id. at 96-97.

(2). Plaintiff's Hostile Workplace and Gender Discrimination Claims

Gidron also makes a variety of claims regarding the working conditions at P.S. 156. These span a number of years, often involving unrelated incidents. Construing the facts in the light most favorable to Gidron, all details that might support his hostile workplace claims are listed chronologically.

According to Gidron, at an unspecified date prior to 2001, Quessie Fairley ("Fairley"), who worked as a supervising school aide and was Gidron's immediate supervisor, instructed all school aides to break up fights between students. Gidron Dep. at 75. Gidron felt that in reality, however, this directive only applied to male school aides, while females "didn't really have to go and break up the fights." Id. Principal Little contends that school aides are not expected to intervene in fights between students. Little Decl. at ¶ 5. Gidron does not describe any occasions in which he, or other male school aides, broke up fights. Gidron also fails to cite any incidents where female school aides were not required to break up fights.

On October 12, 2001, Gidron had a physical altercation with a fifth-grade student named Kendra Coleman ("Coleman"). In a hand-written letter dated October 21, 2001, Gidron says that the altercation started when Coleman responded to Gidron's orders for her to leave a particular area of the school by swinging her arms and slapping his face. Compl. Ex. 1 at 1. In response, Gidron defensively took hold of Coleman's arms and held them tightly to avoid additional blows. Id. He also maneuvered Ms. Coleman's hands towards her mouth whenever she would try to bite him. Id. In a separate letter and in his deposition, Gidron acknowledged that during the altercation he also pushed Coleman onto the ground because she laughed at him and slapped him in the face. Id. at 6; Gidron Dep. at 89-90.

At Coleman's request, an investigation commenced into Gidron's act of pushing her onto the ground. On October 15, 2001, Principal Little informed Gidron that she had concluded that Coleman's allegation of corporal punishment was substantiated, and a letter reflecting this was placed into Gidron's file. Compl. Ex. 1 at 3.

Gidron says he was denied an opportunity to present a student witness who would testify on his behalf in the investigation. Id. at 57. Gidron also claims that Fairley, the female school aide who was Gidron's supervisor, was allowed to present the testimony of a sixth-grade student witness when she was investigated for allegedly slapping a third-grade boy in the face in March 2003. Id. However, at his deposition, Gidron acknowledged that he did not actually know whether or not Fairley was charged with corporal punishment, whether or not she received a letter in her file regarding corporal punishment, or whether anyone had ever spoken with Fairley about the incident in which she was involved. Gidron Dep. at 91. The record is silent as to these issues.

In his deposition, Gidron alleged that female school aides generally received more time off than men to do "special things." Gidron Dep. at 119. However, he also admitted that he himself had never personally requested time off. Id. He also did not know whether or not other male school aides requested or took time off. Id.

Gidron also claimed that he received a series of negative evaluations as a result of his refusal to accept additional hours as an "accountability" school aide in 2002. See Gidron Dep. at 108; Compl. Ex. 1 at 60-61 ("I have been receiving bad evaluations since I had refused the job as the accountability person for lunch."). Although the record is unclear on this point, it appears that the "accountability" position involved working an extra hour during lunch in the schoolyard tending to students. Compl. Ex. 1 at 61. Gidron turned down the extra hours because he felt that another school aide wanted the hours and deserved them more than he did. Id. at 58. At the same time, Gidron was upset that he could not work additional hours, other than the assignments being offered by his supervisors. See id. (Gidron's complaint that he was "not allowed to get more hours unless it is something that the Principal Ms. Little or Supervising School Aide Ms. Fairley wants me to do").

To demonstrate that his evaluations were negatively affected by his refusal to work in the accountability position, Gidron submitted copies of his annual evaluations for the years 1992 through 2004. Compl. Ex. 2 at 95-109. Each evaluation sheet is a single hand-written sheet that ranks fifteen individual categories, which are then followed by a single "overall" ranking. Id. These demonstrate that Gidron was consistently ranked as a "satisfactory" employee. Id. On two instances, Gidron received unsatisfactory rating within an individual category:

* On May 20, 2002, in an evaluation prepared by Little, Gidron's "attendance" was unsatisfactory, as he had been absent for two months.*fn9 His overall ...


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